NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0639n.06
No. 09-2056
FILED
UNITED STATES COURT OF APPEALS Oct 06, 2010
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ANGELO CHAMBLISS, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: MERRITT, ROGERS and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. Angelo Chambliss challenges the outcome of his § 3582(c)
sentence-reduction proceeding, which reduced his 600-month sentence to 440 months. Because he
fails to offer a cognizable ground for mandating a still-lower sentence, we affirm.
I.
A jury convicted Angelo Chambliss of conspiring to distribute cocaine base, 21 U.S.C.
§§ 846, 841(a)(1), and distributing cocaine base within 1000 feet of a school, 21 U.S.C. §§ 841(a)(1),
860(a). At his 1992 sentencing hearing, the district court calculated a guidelines range of 360
months to life. The court sentenced Chambliss to a 600-month prison term, and we affirmed. See
United States v. Hill, 30 F.3d 48 (6th Cir. 1994).
No. 09-2056
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At the time, the guidelines included a 100-to-1 ratio for crack to powder cocaine, meaning
that the guidelines treated each gram of crack as 100 grams of powder cocaine. In 2007, the
Sentencing Commission reduced the base offense level associated with crack cocaine, shrinking the
crack-powder ratio in various ways throughout the guidelines. See U.S.S.G. Supp. App. C, amdt.
706 (effective Nov. 1, 2007); U.S.S.G. § 2D1.1(c)(1)-(10). The next year, the Commission made
the amendment retroactive. See U.S.S.G. Supp. App. C, amdt. 713 (effective Mar. 3, 2008).
Chambliss filed several motions to reduce his sentence under § 3582(c)(2), which allows a
court to reduce a sentence premised on a guideline that the Commission later retroactively reduces.
See 18 U.S.C. § 3582(c)(2). The court held a hearing, calculated a new guidelines range (324–405
months) and reduced Chambliss’s sentence to 440 months. In declining to reduce Chambliss’s
sentence still further, the court cited Chambliss’s criminal history, the fact that he committed these
crimes while on parole and his poor prison-discipline record. Chambliss appealed.
II.
We begin by considering our power to entertain this appeal. Although the parties have not
raised the issue, we have an independent obligation to police the bounds of our jurisdiction, even if
it means doing so on our own initiative. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583
(1999).
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We may hear appeals from § 3582(c) proceedings if the sentence
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines;
or
(3) is greater than the sentence specified in the applicable guideline range to the
extent that the sentence includes a greater fine or term of imprisonment, probation,
or supervised release than the maximum established in the guideline range, or
includes a more limiting condition of probation or supervised release under section
3563(b)(6) or (b)(11) than the maximum established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing guideline and is
plainly unreasonable.
18 U.S.C. § 3742(a); see United States v. Bowers, __ F.3d __, 2010 WL 3168260, at *5 (6th Cir.
Aug. 12, 2010). Chambliss’s sentence exceeds the new guidelines range, so § 3742(a)(3) gives us
jurisdiction over this appeal.
III.
Chambliss raises two arguments on the merits, both unconvincing.
As a matter of procedural unreasonableness, he criticizes the court for considering
“unreliable” prior conduct for which he was arrested but not convicted. The problem for Chambliss
is that the government included this information in the original PSR, to which he filed no objections.
He cannot now challenge the district court’s original reliance on this information. See Dillon v.
United States, 130 S. Ct. 2683, 2694 (2010) (correcting original sentencing mistakes is “outside the
scope of the proceeding authorized by § 3582(c)(2)”); cf. U.S.S.G. §§ 4A1.3(a)(2)(D)–(E)
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United States v. Chambliss
(permitting sentencing courts to consider conduct not resulting in convictions). Further, even putting
aside the two crimes for which Chambliss was charged and not convicted, a homicide and an assault,
the record shows two convictions for carrying a concealed weapon as well as a history of parole
violations and an escape from state custody. It is certainly not necessary to conclude that the court
relied on the arrests to determine that Chambliss had an extensive criminal history or to choose the
appropriate sentence reduction. The district court specifically disavowed having relied on the arrests
when defense counsel raised the point in the sentence-reduction hearing and pointed instead to
concerns over Chambliss’s post-incarceration conduct. In fact, the judge put such great emphasis
on that conduct that he said he would have been inclined to reduce the sentence further had
Chambliss been a model prisoner.
Chambliss, it is true, points to one alleged error regarding his post-incarceration record.
During the § 3582(c) proceeding, the district court said that Chambliss “assault[ed] a [prison] guard
without serious injury,” R.270 at 7, yet nothing before the district court, Chambliss argues, indicated
whom he assaulted. Even in original sentencing proceedings, however, we do not punish district
courts for minor omissions or slips of the tongue. And that is all this is, given that Chambliss does
not deny he assaulted someone. Any “error,” if indeed we can call it that, is surely harmless in view
of the reality that no one disputes that Chambliss committed an assault. See United States v. Bacon,
__ F.3d __, 2010 WL 3258559, at *3–4 (6th Cir. Aug. 19, 2010). In its amended resentencing order,
moreover, the court explained its sentence with reference to all of Chambliss’s post-incarceration
conduct—he was insolent, refused to obey an order, possessed a dangerous weapon and assaulted
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United States v. Chambliss
someone without serious injury. Chambliss does not contest any of these findings, and it is clear that
this order, whose only omission is a failure to identify the victim, did not affect the outcome of this
§ 3582(c) proceeding.
That leaves Chambliss’s substantive-reasonableness claim—that the district court improperly
re-sentenced Chambliss to a term “greater than necessary to abide by the policy statement in
U.S.S.G. § 1B1.10 and goals outlined in 18 U.S.C. § 3553(a).” Chambliss Br. 1. This argument also
fails, because Booker “unreasonableness review . . . does not apply to [§ 3582(c)] proceedings.”
Bowers, 2010 WL 3168260, at *10; see Dillon, 130 S. Ct. at 2692.
To the extent Chambliss means to argue that the district court abused its discretion, that also
is without merit. Nothing in § 1B1.10 prevents sentencing courts from reducing a defendant’s
sentence to a term greater than the amended guideline range but lower than the original sentence.
Beyond the resentencing floor, district courts have a considerable amount of discretion in § 3582(c)
proceedings: They may choose to deny a defendant’s § 3582(c)(2) motion entirely, see 18 U.S.C.
§ 3582(c)(2); Dillon, 130 S. Ct. at 2692, and they may determine by how much a defendant’s
sentence should be reduced, see U.S.S.G. § 1B1.10.
The record of the hearing also suggests that the court carefully considered Chambliss’s
position. The court held a hearing, which is not required, United States v. Curry, 606 F.3d 323,
330–31 (6th Cir. 2010), and it considered the positive steps Chambliss took during his incarceration,
completing vocational programs and receiving favorable recommendations from prison supervisors.
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At the same time, however, the court could not ignore the reality that Chambliss’s disciplinary
infractions while incarcerated weighed against him—Chambliss had incident reports for refusing to
obey an order, possessing a dangerous weapon and assault without serious injury. Under these
circumstances, we cannot say that the extent of the reduced sentence amounted to an abuse of
discretion.
IV.
For these reasons, we affirm.
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